June 13, 2012
The Missing Right To Vote—A Commentary by Heather Gerken
The following commentary was posted on Slate.com on June 13, 2012.
The Missing Right To Vote
By Heather Gerken
This month, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. We have three proposals about campaigns and elections: From Laurence H. Tribe, Richard L. Hasen, and Heather Gerken.
The Right To Vote (New Amendment)
The Constitution does not guarantee Americans the right to vote. That always comes as a surprise to non-lawyers. But you will search the Constitution in vain for any such guarantee, as the Supreme Court cheerily reminded us in Bush v. Gore.
What the Constitution contains is a series of “thou shalt nots.” Thou shalt not deny the right to vote on account of race or sex. Thou shalt not impose poll taxes. Thou shalt not prevent 18-year-olds from voting. It is difficult to develop a robust case law when you only know what you can’t do.
Some think that a constitutional amendment guaranteeing the right to vote would instantly produce any number of progressive goodies, like universal registration or a healthy campaign finance system or the end of partisan gerrymandering. Don’t believe it. If an amendment enshrining the right to vote looks anything like its cognates in the Bill of Rights, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians who benefit from the current system. It’s unlikely to be enough to persuade judges to mandate large-scale reform. Judges are conservative creatures (at least in the Burkean sense). They are typically loath to upend a system based on a vague textual guarantee. And a vague textual guarantee is as good as it’s likely to get. As Larry Tribe’s post makes clear, it is a challenge to draft an amendment just to overturn a single case, let alone to detail what a right to vote should involve. Even if we were to add as broad-gauged a right as I suggest below, the courts will inevitably create reasonable exceptions and interpretations, just as it has done for the First Amendment.
So why bother? The best reason to enshrine the right to vote in the Constitution involves the health of the courts more than the health of our democracy. If you want a well-run election system, create a nonpartisan bureaucracy to run it, as Rick Hasen suggests. If you want a functional campaign finance scheme, appoint justices who are ready to go back to the drawing board and rethink Buckley v. Valeo, the Supreme Court decision that struck down limits on campaign expenditures as a First Amendment violation. If you want to end partisan gerrymandering, create independent commissions to draw district lines. But don’t expect an amendment to be a panacea for everything that ails our democracy.
What an amendment would do is help the courts do a better job doing what they are doing now. For better or for worse (and probably for worse), the courts have become the de facto referees of election disputes. It’s the Star Wars problem. Like Obi-Wan Kenobi, they are our only hope, the only ones (outside of self-interested politicians) who can step in. But while courts inevitably must resolve these cases, they lack the tools to do so. Just take a look at one of the court’s most revered lines of cases, the “one person, one vote” doctrine. The early cases, starting with Baker v. Carr in 1962, are largely unmoored from conventional legal analysis. I sometimes joke with my students that the only law in these cases is in the dissents.
If there is one time when courts must adhere rigorously to the dictates of legal craft, it is when they intervene in politics. The courts cannot avoid making decisions that will change political outcomes. When they do so, though, their opinions should measure up to the highest standards. Bush v. Gore is just the most prominent example of what happens when judges offer a badly reasoned decision that aligns with their own political preferences.
What the courts really need is case law, the stuff that comes from what David Strauss brilliantly describes as common law constitutionalism. In many other areas of constitutional law, courts have begun with a vague constitutional guarantee—the right to free speech, equal protection—and gradually built up a long line of cases that flesh out what the text means. The precedents don’t constrain judges entirely—far from it. But they do give later decisions shape and form, and allow wisdom accreted over time to be layered onto a thin constitutional text. Well-developed case law, in short, helps ensure that judges adhere to the dictates of craft.
For the doctrine to develop, though, we need a starting point, and we don’t have one in this arena. Without a right to vote enshrined in the Constitution, the courts inevitably look to the First and 14th Amendments. But these amendments capture only a part of what matters in voting. Too often courts witlessly apply the case law without thinking about what makes elections distinctive. As a result, the jurisprudence is a mess—unruly, incoherent, and often ad hoc. Adding a right to vote to the Constitution wouldn’t guarantee better elections. But it might well get us better court decisions about elections. Here’s my proposed amendment:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State.